Judgment

VENKATACHALIAH, J.:- These appeals by special leave preferred against the judgment dated 10-12-1984 of the High Court of Allahabad in Criminal Appeal No. 14 of 1979 on its file, dismissing the appellants appeal and affirming the conviction under S. 396, I.P.C. and sentence of rigorous imprisonment for ten years dated 22-12-1978 passed against the appellants by the First Additional Sessions Judge, Jaunpur in S.T. No. 168 of 1974, raise the question of correctness of the principles applied to test the identification evidence.

2. On the night between the 3rd and 4th November, 1973, at about 1.30 A.M. there was a dacoity in the house of Gangaram Yadav in Khuthana village in Jaunpur District. Eight to ten persons were alleged to have participated in its commission. Gangaram Yadav was living in the house with his wife Keshri; his son Kamla Prasad (PW 1); his daughters Amrawathi (PW 2) and Chandravathi (PW 4); his father Mathura Yadav and his brother Rajdeo. That day Gangaram Yadav and one Sunder were sleeping in the Bythak of the house, while Mathura Yadav and Kamla were sleeping in another portion of the house. Gangarams wife and daughters were asleep in an adjacent new construction put up by PW 1. Rajdeo was also sleeping there.

A lantern was lit in the Bythak. At the site of the pump house on a side of the house, a 100 Watts electric bulb was burning.

At 1.30 A.M. the household was rudely woken up by the barking of dogs and the dacoits armed with weapons, including fire arms, raided the house, in the course of which, apart from the looting of property, both the brothers Gangaram Yadav and Rajdeo were seriously injured. Both the brothers succumbed to the injuries soon thereafter. In response to the commotion and the alarm raised by the household a number of villagers including Sanktha is stated to have assembled at the spot with torches and lathis. They challenged the dacoits, who hastened away with the loot under cover of gun-fire, injuring Sanktha.

The F.I.R. (Exhibit 1) was lodged at the Station House at Jabalpur at 3.45 p.m. that day. The identity of the culprits was not disclosed; but some general physiognomic features which could be of universal application were mentioned. Post-mortem examinations of the deceased persons were conducted on the following day i.e. 5-11-1973.

3. In the course of the investigations, on 9-11-1973 appellants and one Pheku Singh, who has not appealed against the confirmation of his conviction by the High Court, were arrested from the villages of Mai and Mathurapur which are said to be in close vicinity of the place of occurrence. But they were put up for test identification in an identification parade only on 5-3-1974 nearly four months after their arrest held by the Executive Magistrate (PW-6). The accused persons were stated to have been picked out by PWs 1 to 4. Appellants, along with the said Pheku Singh, were arraigned for the offence. Their defence was one of denial. In the trial Kamla (PW 1), Amrawati (PW 2), Chandravathi (PW 4) gave, what according to them, was an eye witness account of the incident and identified the appellants as the culprits. They claimed to have been able to re-call the identity of the appellants by the perception made at the time of the occurrence with the aid of the light of the lantern and the electric bulb. However; Sital (PW 3) who was also put up as an eye witness did not support the prosecution.

The trial culminated in a conviction and sentence of imprisonment for life which have, since, been affirmed in appeal by the High Court.

4. Shri Yogeshwar Prasad, learned senior counsel, urged in support of the appeals, a short, but not ineffective contention, touching the acceptability of the evidence as to identity of the culprits. Appellants, it transpired, were residents of and arrested from, the villages of Mai and Mathurapur which undisputedly were situate in close vicinity of the village Khuthana where the incident took place.

Appellants endeavour in the cross-exam